A New Arrest, By Itself, Is Not Enough To Violate Probation

Being on probation in Orlando is like having a dark cloud follow you wherever you go. Of course, I haven’t personally seen this dark cloud, and there’s no scientific evidence to support my theory — but after nineteen years of defending VOP cases, it seems that citizens who are on probation attract more trouble than those who are not. (sure, you statistics folks are going to easily explain away how this ‘dark cloud’ is nothing more than a foregone conclusion given the population set we’re dealing with–but why ruin my touchy feeling conclusions with hard math?).

Given this dark cloud hovering above probationers, it’s fairly common to see these folks re-arrested on new charges. Upon re-arrest, here’s a pretty common observation: “I’m screwed, I’m on probation and I’ve been re-arrested”. Well, not so fast Mr. Negativity. The truth is, a new arrest will lead to the filing of a violation of probation warrant based upon the new arrest, and that’s no fun. However, the good news is that this new arrest does not necessarily mean that the government has enough evidence to find you guilty of violating your probation. That’s because a new arrest is not really the reason for the issuance of the violation warrant–the real reason is the allegation that you’ve broken the law. Thus, when the state simply attempts to prove that you’ve been “re-arrested”–you will win the violation of probation hearing. Don’t believe me? Here’s one example.

The case is Person v. State, 83 So.3d 940 (Fla. 3rd DCA 2012). Person was found guilty of violating his probation and sentenced to the maximum of thirty years prison. One of the violations was a new allegation of aggravated battery. Basically, this violation claims that Person “failed to live and remain at liberty without violating any law”. The court heard testimony that indicated there was, indeed, probable cause for his aggravated battery arrest. As such, the court found him guilty of violating that condition.
The appeals court overturned the conviction for that particular VOP allegation, finding that “a mere arrest is obviously insufficient to establish a violation.” Basic stuff, right? A new arrest is insufficient, it’s really the proof of violating the law that violates probation, and the government didn’t present any evidence regarding the aggravated battery, just evidence of the arrest itself.

But the court wasn’t done with Person, he had other violations. Another violation was probation’s claim that Person failed to attend a substance abuse evaluation. This sort of thing is common with probation officers. Even though it was true that Person had never obtained a substance abuse evaluation–the trial court never ordered him to! Thus, this condition was simply made up by probation (this is one of the most commonly fabricated conditions of probation out there…). The appeals court found that this violation “cannot stand because there is no such standard condition of probation, and none was clearly enunciated during the oral pronouncement of additional ones”. Again, listening to the judge at sentencing can be very important later, because the only thing that matters is what the judge said–not what probation says.

Finally, the appeals court examined Person’s violation for failing to maintain employment. In this economy–with a felony conviction–how do you expect felons to be employed? The problem was, that probation requested Person maintain job search logs, submitting reports to probation on all the jobs he has searched for. Once again, the appeals court struck down this violation, reasoning that “[b]ecause there was no orally pronounced or written order which required the filing of such documents, he could not have been violated on this ground.” When judges claim that no one listens to them, lump some probation officers into this grouping.

Unfortunately for Person, the appeals court did find that he violated his probation on other grounds, but the case was sent back to the same judge for re-sentencing based upon the remaining violations. So there you have it, three pretty common violations that are not as easy to prove as the probation officers would have you believe.